A TIME FOR CHANGE?
Consulting Communities on a
Draft Land Code in Chad
1
Acknowledgements and
background
Written by Stephanie Gill (Tearfund UK) and Jocelyn Madjenoum (Independent
Researcher, Chad). © Tearfund, 2015
Photo credits: Boniface Tchingweube, EEMET
With thanks to: Levourne Passiri, Boniface Tchingweube and Tearfund partners EEMET,
PCAR, SCMR and CECADEC.
Tearfund: Tearfund is a UK-based Christian relief and development agency working with a
global network of churches to help eradicate poverty. Tearfund supports local partners in
more than 35 developing countries and has operational programmes in response to specific
disasters.
EEMET: (l’Entente des Eglises et Missions Evangeliques au Tchad – the Accord of
Churches and Evangelical Missions in Chad) is a partner of Tearfund. EEMET is an
umbrella organisation representing different Christian denominations. It undertakes
development work in different parts of Chad, in areas including food security, education,
HIV, work with orphans, and peace and reconciliation. It undertakes advocacy on these
issues from a local to national level.
Tearfund partners EEMET, PCAR (Programme Chrétien d’Animation Rurale – Christian
Programme for Rural Development), SCMR (Service Chrétien en Milieu Rural – Christian
Service in Rural Communities) and CECADEC (Centre Chrétien d’Appui au Développement
Communautaire – Christian Center Community Development Support) have all been
involved in advocacy on land issues for many years. In January 2014 Tearfund facilitated a
workshop in N’Djamena that brought these partners together to discuss how they might
jointly scale up their advocacy on land rights.
Following this workshop, representatives from these partners, along with Tearfund staff, met
with the General Secretary from the ministry responsible for land. The General Secretary
presented them with the draft of a new land code and requested constructive
feedback. This research was undertaken in response to this request.
This research consisted of four community consultations, each coordinated where one of
Tearfund’s partners is primarily based. All areas face annual conflicts between pastoralists
and farmers. The research findings presented in this report were funded by Tearfund and
coordinated by EEMET. EEMET appointed Jocelyn Madjenoum, a consultant from Chad, to
undertake the research.1 This report presents a summary of EEMET’s research with
permission granted by EEMET.
This report also contains some additional input for the purposes of clarification and
background information. This came from further discussions with staff, partners and existing
literature.
1
2
To access EEMET’s report please contact Stephanie.Gill@tearfund.org
Table of Contents
Acknowledgements and background
2
Executive summary
4
Introduction
9
Introduction to Chad
9
Background to Chadian land policies
9
Methodology
Research aim
11
Research questions
11
Research methodology
11
Limitations to research
12
Analysis and Results
3
11
13
Customary rights
13
Expropriation and eviction
15
Missing aspects
18
Potential loophole
19
Conclusion
20
Recommendations
22
Bibliography
23
Executive summary
BACKGROUND
This research aims to critically evaluate the current draft of a new land code in the Central
African country of Chad. In January 2014, the government of Chad presented Tearfund and
four of Tearfund’s partners with a draft of the proposed new land code and requested
constructive feedback. Research was undertaken in response to this request and is
presented here.
The aim of this research is to ensure the new law gives fair consideration to the rights of
those who depend on the land for their livelihoods – approximately 80% (USAID 2010) of the
current 12.83 million population in Chad (World Bank 2013).
The current land law has not been updated since 1967 and, according to USAID (2010),
‘does not reach critical issues of land tenure’ (p 3). The majority of the Chadian population
are unfamiliar with the content of these laws and they are not available in local languages.
Customary land tenure systems are used by most landholders in Chad.
This presents the challenge of an uneasy coexistence between state and customary law,
which often puts communities at a disadvantage, especially regarding ownership of land and
eviction procedures.
Revising this land law presents an opportunity for these issues to be addressed.
RESEARCH QUESTIONS
Building on a review of background information and existing literature, this work aimed to
examine three core sets of research questions:
1. Does the proposed new land code recognise customary rights, and what provisions
does the law make with regards to eviction and compensation?
2. Are there any important aspects that are missing or loopholes which could potentially
have a negative impact on communities?
3. How well does the proposed new land law match up to the Food and Agriculture
Organization of the United Nations’ ‘Voluntary Guidelines on the Responsible
Governance of Tenure of Land, Fisheries and Forests in the Context of National Food
Security (FAO Guidelines)’?
4
METHODOLOGY
Initial issues for clarification, discussion and consultation were identified through a
preliminary overview of the proposed new land code, drawing on legal expertise from the UK
and Chad. A series of consultation meetings were then organised with a range of
stakeholders from local communities in three regions across the country: Béré, Pala and
Bousso.
This was followed by a workshop in N’Djamena in order to discuss the recommendations put
forward through the community consultations.
Figure 1: Map showing location of consultations and workshop.
Semi-structured interviews were also held with civil society organisations and government
officials during the process. Overall around 130 participants were consulted with.
RESULTS
Clarification required
The draft code appears to recognise customary rights and goes some way towards
protecting them. However, concerns were raised at the lack of definition of customary
rights and further clarity could offer communities greater protection. The code seeks
to allow customary rights to be changed into property rights, although farmers have to prove
that they possess and use the land.
The intention and rationale behind this may be promising, but, without clearer guidelines,
how this is implemented in practice could present challenges. Further clarity is also required
for the conditions in which the varying levels of government can allocate different plot sizes.
In addition, the draft code states that people can be expropriated when ‘public interest’
requires this. However, without a clear definition of ‘public interest’, multiple interpretations
may arise in practice.
5
Obtaining a land title
It is not clear whether the draft code will improve the existing process of obtaining a
land title. Registering land ownership under the current law requires ‘six procedures, an
average of 44 days, and payment of 23% of the property value’ (USAID 2010 p 6), and
participants in the consultation expressed frustration from their experiences of this process.
Under the new code, this procedure should be simplified, the services responsible should be
decentralised, and the cost of obtaining a land title should be reduced. This would enable a
greater number of holders of customary rights to obtain an official land title and could give
them greater bargaining power in the process of obtaining compensation when faced with
expropriation or eviction.
Figure 2: Local authorities at the consultation in Béré.
The expropriation process
Concerns were raised about the expropriation process laid out in the draft code. The
code states that once a declaration has been made that a piece of land is required for ‘public
interest’, the owner is forbidden from undertaking any construction on the land. This
potentially puts the owner of the land at a significant disadvantage while they wait for the
expropriation procedure.
Additional concerns raised included the potential costs incurred by the farmer in the appeal
process, the failure to take into account loss of future earnings in determining compensation,
and the relatively low notice period (one month) to evacuate a building once the process is
finalised.
Figure 3: Consultation held in Bousso
6
Local mediation
One aspect participants considered to be missing from the land code is a provision for
settling land disputes using mediation techniques at a local level. Participants also felt that
having one land code that is supposed to be applicable to both rural and urban contexts may
put some communities at a disadvantage.
FAO Guidelines
The draft code goes some way towards aligning itself with the principles of the FAO
Guidelines, however alignment could be strengthened in a number of areas, including
eviction and expropriation processes and local level mediation.
CONCLUSION
This draft code has the potential to benefit the 80% of Chadians (USAID 2010) who depend
on land for their livelihood, though improvements and amendments are required, as outlined
above. It is critical that due care is taken for the law to be implemented effectively. It will be
of paramount importance that rural farmers are made aware of their rights under the
proposed new law – both rights that are remaining and new rights.
It will be particularly important to consult with women’s groups; though the draft code itself
does not discriminate based on gender, there may be challenges implementing this principle
at a local level.
It is important to recognise that 63% of the Chadian population are illiterate (World Bank
2012) and that additional tools are required to raise awareness. In order to address these
challenges and aid the implementation of the land code in rural areas, a rural land service
should be established at the sub-prefecture level with the purpose of specifically addressing
the land needs of rural communities.
Questions remain about whether sufficient funding has been allocated to the implementation
of the proposed new land law once it is passed. The international community will have a
significant role to play in supporting the government of Chad in this process.
Finally, further research should be undertaken to enable a wider participation of
stakeholders, ensuring greater diversity of input into the formation and
implementation of this proposed new law.
7
RECOMMENDATIONS
Based on this research on the draft land code, the following recommendations are
presented:
1. For clarification:
 The term ‘customary rights’ must be clearly defined.
 The definition of ‘permanent and evident’ ground coverage must be clearly defined.
 The term ‘public interest’ should be clearly defined.
 Clarification is required for the conditions by which the Council of Ministers can
allocate land over 10 hectares.
2. For amending:
 The process for obtaining land titles should be simplified and the costs significantly
reduced.
 The article forbidding any construction, planting or improvements on land during the
expropriation process will put the owner of the land at a significant disadvantage and
should be revised.
 Loss of future earnings should be taken into consideration as part of compensation.
 A longer notice period (than one month) should be given once the compensation
ruling is finalised.
3. For further consideration:
 The articles outlining the consultation process (which occurs prior to any compulsory
purchases) should be further developed.
 The expropriation process must not be drawn out and costs of appeal should be
covered by the state.
 The state must ensure it has sufficient funds to effectively implement this law
(including the expropriation costs) effectively.
4. For provisions to be added:
 The code should contain articles specific to rural land and articles specific to urban
land.
 A provision should be included that supports mediation as a mechanism for resolving
land-related disputes.
5. For implementation:
 Community participation is absolutely essential for the development and
implementation of this code and further research should be undertaken to help
strengthen it.
 Communities must be made aware of their rights under the code – both remaining
and new. Local officials must be trained to help implement them.
 A rural land service should be established at the sub-prefecture level.
 Sufficient funding must be in place for all areas required to implement this code
effectively
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Introduction
Introduction to Chad
Chad is one of the poorest countries in the world, ranking 184 out of 187
countries in the 2014 UN Human Development Index. Chad’s population of 12.83
million (World Bank 2013) faces challenges sadly familiar to the Sahel region,
including the impacts of climate change, population growth, poor governance,
food insecurity, land degradation, and internal and external conflict. It also has
the lowest life expectancy and the highest under five mortality rate out of Burkina
Faso, Mali, Niger and Mauritania (WHO 2014). Around 80% of Chad’s labour
force is in the agricultural sector (USAID 2010) so access to and sustainable use
of land is a critical issue.
Background to Chadian land policies
‘The country’s skeletal land legislation dates from 1967 and does not reach critical
issues of land tenure’ (USAID 2010 p 3).
The main land legislation for Chad is contained in three laws from July 1967
(Laws No. 23, 24 and 25). The majority of the Chadian population are
unfamiliar with the content of these laws and they are not available in local
languages. Customary land tenure systems are used by most landholders in
Chad. This system contributes to an uneasy coexistence between state and
customary law which has many implications, including making obtaining title
deeds challenging.
The 1967 laws require landholders to register land and stipulate that without title
deeds the land is state land. This clause overrides the customary land tenure
systems. However, the registration process is complex, inaccessible,
expensive, and not only out of reach for most smallholder farmers, but also
largely unknown to them as well. As a result, very few land titles have been
issued, especially in rural areas. The formal laws also state that if a landholder
does not use their land for ten years, then they lose their right to it. This clause
demanding evidence of use can be challenging to verify.
The 1967 laws also outline the state’s right to carry out expropriation. One of the
disadvantages of lack of understanding of the law is that communities do
not understand their land rights during the expropriation process. Many
communities that Tearfund’s partners work with have been directly impacted by
this process and have been forced to vacate their land, with little, if any,
compensation provided. A frequent reason cited for land expropriation is the
arrival of extractive companies – mainly mining for gold and uranium. Another
reason cited is the expansion of towns and villages forcing rural farmers off their
land.
9
Disputes over land are an increasingly common problem, particularly
between farmers and pastoralists. Partners cite conflicts between farmers and
pastoralists to be an annual challenge in the areas in which they work, with loss
of life occurring most years. Conflicts have also occurred when people are
evicted from their land with little or no compensation.
The main official channel for settling conflicts is through the courts; however, few,
if any, are accessible locally. There are also customary authorities who mediate
between conflicting parties to varying degrees of effectiveness.
10
Methodology
Research aim
To ensure that the new land law gives fair consideration to the land rights of
smallholder farmers who depend on land for their livelihoods.
Research questions
Building on a review of background information and existing literature, this work
aimed to examine three core sets of research questions:
1. Does the proposed new land law recognise customary rights and what
provisions does the law make with regards to eviction and compensation?
2. Are there any important aspects that are missing or loopholes which could
potentially have a negative impact on communities?
3. How well does the proposed new land law match up to the Food and
Agriculture Organization of the United Nations’ ‘Voluntary Guidelines on the
Responsible Governance of Tenure of Land, Fisheries and Forests in the
Context of National Food Security (FAO Guidelines)’?2
Research methodology
Initial issues for clarification, discussion and consultation were identified through
a preliminary overview of the proposed new land law, drawing on legal expertise
from the UK and Chad. A series of consultation meetings were then organised
with a range of stakeholders from local communities in three regions across the
country: Béré (where SCMR is based), Pala (where CECADEC is based) and
Bousso (where PCAR is based).
The consultations had two purposes:
1. Inform communities of the draft land code
2. Obtain feedback to the draft code, including concerns and proposed
amendments.
This was followed by a workshop in N’Djamena (where EEMET is based) with a
range of stakeholders. The purpose of this workshop was threefold:
1. Inform the participants of the draft land code
2. Provide feedback on the draft law
3. Discuss the recommendations put forward through the community
consultations.
Semi-structured interviews were also held with civil society organisations and
government officials during the process. Overall around 130 participants were
consulted with. As far as possible the following groups of stakeholders were
consulted with during each consultation: elected representatives, farmers,
pastoralists, women leaders, religious leaders and local leaders.
2
‘The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food
Security’ promote secure tenure rights and equitable access to land, fisheries and forests as a means of eradicating hunger and
poverty, supporting sustainable development and enhancing the environment. They were officially endorsed by the Committee on
World Food Security on 11 May 2012.
11
Figure 4: Map showing location of consultations and workshop
Limitations of research
Limitations to this research included the following:
 A relatively small number of people were consulted (around 130 in total).
 Consultations occurred in the south of Chad and were limited to the location
of Tearfund partners.
 It was challenging to get an equal spread of stakeholders at the consultations
and therefore ensure that they each had an equal opportunity to input.
12
Analysis and results
This analysis draws out the common themes that emerged through the
background research and community consultations. Analysis of the first two
research questions regarding (i) customary rights, expropriation, eviction and
compensation and (ii) missing aspects and loopholes, are discussed in turn. The
third research question regarding the FAO Guidelines is discussed throughout.
The research recommendations are presented during the analysis and then
grouped together at the end of this report.
Customary rights
The term ‘customary rights’ must be clearly defined.
The draft code appears to recognise customary rights. Articles 9 and 24 of the
draft code state that the owners of customary rights may continue to enjoy them.
Article 24 goes further to state that those with customary rights may continue to
enjoy them if they do not have to be expropriated under Article 103. Concerns
were raised at the lack of definition of customary rights given in the draft code.
Article 24: Recognised rights for holders of customary rights
All physical and moral persons holding customary rights before the publication of the present
law will retain them. In consideration of common public interest, the State or local and
regional authorities may dispossess them in accordance with article 103 and the articles of
the present law.
Article 70 appears to go some way towards protecting the holders of customary
rights. It is therefore important that this definition is not open to misinterpretation,
and therefore further clarity could offer communities greater protection.
Article 70: Conditions of transfer or modification of customary land rights
Customary land rights, whether collective or individual, may not be transferred or modified in
favour of corporate bodies or individuals who may have the same rights due to customary
rules, and only within the limitations and conditions that these provide. Evidence of this
possession should be established by all means possible.
Sections 9.5, 9.8 and 10.6 of the FAO Guidelines are explicit in their call for the
state to protect those with customary rights, with section 9.8 stating ‘States
should protect indigenous peoples and other communities with customary tenure
systems against the unauthorised use of their land’ and section 10.6, which
states, ‘where it is not possible to provide legal recognition to informal tenure,
States should prevent forced evictions’. The language of the code could be
strengthened to reflect this.
13
The definition of ‘permanent and evident’ ground coverage must be clearly
defined.
Article 71 seeks to allow customary rights to be changed into property rights. It
states that this is possible when there is ‘permanent and evident’ ground
coverage, or rather ‘evidence of permanent possession’.
Article 71: Conditions for changing customary rights in property law
Customary rights, whether exercised collectively or individually, may be changed into
property rights when they comprise permanent and evident ground coverage.
The intention and rationale behind this article may be promising, but how this
article is implemented in practice could present challenges without clear
guidelines as to how a land owner proves that they possess and use the land. It
is therefore important that a clarification of what is meant by ‘permanent and
evident’ ground coverage is given in order to avoid abuse or misinterpretation by
the authority responsible for issuing these rights.
The process for obtaining land titles should be simplified and the costs
significantly reduced.
Article 8 outlines that a person holding customary rights is entitled to register
their land and obtain a legally recognised land title.
Article 8: Heritage composition for other natural or legal persons
The land heritage of other persons or entities includes all real estate held by them by virtue of
a land title transferred to their name as a result of the conversion of a customary right or
concession right as registered ownership, assignment or other transfer mode of a land title.
The significance of a land title is highlighted in Article 85, which lays out the
binding nature of a land title and states that it cannot be overwritten by another
form of land title. It assures ownership of land for the holder of the land title.
Article 85: On the lasting and irrevocable nature of a land title and rights granted
The land title is lasting and irrevocable. It forms, where applicable, the unique basis for all
existing property rights, before all courts. From the date of registration, no property right, no
ground for rescission or cancellation by reason of prior ownership may be claimed against
the current owner or their successors. Some land titles arising as the result of a grant may,
however, include a cancellation clause or a transfer restriction clause when issued; such
clauses are always temporary.
However, it is not clear whether the draft code will improve the existing process
of obtaining a land title. Registering land ownership under the current law
requires ‘six procedures, an average of 44 days, and payment of 23% of the
property value’ (USAID p 6), and participants in the consultation expressed
frustration from their experiences of this process.
This procedure should be simplified, the services responsible should be
decentralised, and the cost of obtaining a land title should be reduced. This
would enable a greater number of holders of customary rights to obtain an official
land title and could give them greater bargaining power in the process of
obtaining compensation when faced with expropriation or eviction. The FAO
Guidelines also support ‘simplified procedures and locally suitable technology to
reduce the costs and time required for delivering services’ (Section 17.4).
14
Expropriation and eviction
The term ‘public interest’ should be clearly defined in the code.
The draft code states in articles 103 and 128 that people can be expropriated
when ‘public interest’ requires this. Article 103 refers to people with title deeds
and 128 to those with customary rights.
Article 103: Compulsory purchase
Compulsory purchase is the procedure by which the public authorities require a legal or
physical person to transfer ownership of a building or title deed where this is in the public
interest in return for appropriate and prior compensation.
Article 128: The withdrawal of customary rights where required by the public interest
Where the public interest requires the withdrawal of customary rights to a parcel of land, a
process of declaring and evaluation of these rights, followed by compensation or equivalent,
is used for the evacuation process.
However, without a clear definition of ‘public interest’, multiple interpretations
may arise in practice. The law should list more clearly the areas that may qualify
as ‘public interest’ to increase transparency and ensure a fair process.
The FAO Guidelines support both state and non-state actors to work in a
transparent way by ‘widely publicizing processes’ (Section 17.5) and ensuring
clarity.
The articles outlining the consultation process (which occurs prior to any
compulsory purchases) should be further developed.
The draft code in Article 105 refers to the need to conduct a consultation process
before any expulsion or expropriation can occur.
Article 105: Public consultation
All compulsory purchases must be preceded by a public consultation period with a minimal
duration of one month and a maximum of four months, which must be widely communicated
in order to allow all interested parties particularly those affected by the compulsory purchase,
to assert their rights.
This section of the code would benefit from being developed with clear guidelines
outlining this process. This is to ensure that these consultations are held in a fair,
transparent and participatory manner, and will prevent any chance of
misinterpretation when implemented.
The article forbidding any construction, planting or improvements on land
during the expropriation process will put the owner of the land at a
significant disadvantage.
Concerns were raised about Article 107, which states that once a declaration has
been made that a piece of land is required for ‘public interest’ then the owner
cannot undertake any construction on the land, and no planting or improvements
can be carried out during the expropriation procedure.
15
Article 107: Ban on construction and planting after the publication of the decree
announcing the public interest
Following the decree announcing the public interest, no structure may be erected, no planting
may take place and no improvements may take place on the land subject to the
aforementioned project.
This article therefore puts the owner of the land at a significant disadvantage
while they wait for the expropriation procedure. For example, if the land belongs
to a farmer who depends on the land for their livelihood, including food security,
then they will be at an enormous risk if they are forbidden to plant. This is
especially true if there is a long appeal process or there is a delay in obtaining
compensation. The expropriation process should therefore be amended to take
this into account.
The expropriation process must not be drawn out and costs of appeal
should be covered by the state.
The state must ensure it has sufficient funds to effectively implement this
law (including the expropriation costs) effectively.
Article 108 lays out the process if the administration and the person subject to
the compulsory purchase are unable to agree the amount of compensation after
a maximum period of six months. It states that each side should assign two
experts to write a report and submit it to the court who will make a final decision.
Article 108: Determining compensation for compulsory purchases
The compensation for compulsory purchases must be fixed by mutual agreement. If an
agreement is not reached within a maximum of six (6) months, the complainant may bring the
matter before the relevant competent court. Two experts must be assigned by the
administration and two by those subject to the compulsory purchase. These experts must
submit their report to the relevant competent court within a maximum of one month after their
appointment.
Though the intention to have a third party review the compensation claims is
welcome, there is concern over whether the person being expropriated will have
to cover these costs. It is argued that because it is the administration who
initiates the expropriation, it is fair that the administration covers these appeal
costs.
Sections 6.6, 9.10 and 10.3 of the FAO Guidelines place particular emphasis on
providing legal assistance and minimised costs. Section 6.6 places emphasis on
the ‘vulnerable and marginalized groups’, while section 10.3, the ‘farmers and
small-scale food producers’.
The issue of whether the state has sufficient funding to effectively implement the
draft land code, including procedures such as the above, is a significant concern.
It is important that these processes are not too long and drawn out, given the
urgency of the situation for the person facing expropriation.
16
Loss of future earnings should be taken into consideration as part of
compensation.
Article 109 lays out the conditions for agreeing the amount to give in
compensation, including value of the property, and any capital gains or losses
resulting from the compulsory purchase not taking place.
Article 109: Establishing compulsory purchase compensation
Compulsory purchase compensation shall be established in consideration of the following in
all cases: The state and current value of the property as of the date of the compulsory
purchase ruling or the judicial decision authorising the amicable transfer of ownership; The
resulting capital gain or capital loss of the property not being purchased as part of the
execution of the planned project; The full payment of all excise and duties related to the
property in question. Each of the elements given in the above section will be used to
calculate the overall sum. The compulsory purchase compensation must only cover actual
and proven damages directly caused by the compulsory purchase. It should not cover
unproven, potential or indirect damages.
However, loss of future earnings has not been accounted for in assessing
compensation. This should be considered as part of the compensation amount
and must be based on clearly defined criteria – for example, future income lost
during the transition period to utilising a new piece of land.
A longer notice period (than one month) should be given once the
compensation ruling is finalised.
Article 112 clarifies that once the compensation process ruling is finalised,
payment by the administration must be made, and one month later it can take
possession of the building.
Article 112: Payment of compensation and taking possession of the building
Following the ruling of the President of the Court, the appellate jurisdiction is stopped
following the case, and the administration will pay all compensation or, in the event of repairs
to be made to the compulsory purchase property to be received, these must be submitted to
the Clerk of the Court. The administration may take immediate possession of the building one
month after the conclusion of this process.
Concerns were raised about this relatively low notice period to evacuate a
building. Participants in N’Djamena especially, highlighted the difficulties in
finding and moving to proper housing and raised concerns about high housing
costs. It was suggested that six months would be a more appropriate notice
period.
Section 16.9 of the FAO Guidelines warns that ‘Evictions and relocations should
not result in individuals being rendered homeless’ and that ‘where those affected
are unable to provide for themselves, States should, to the extent that resources
permit, take appropriate measures to provide adequate alternative housing’.
17
Missing aspects
The code should contain articles specific to rural land and articles specific
to urban land.
It was suggested by participants that, rather than combine urban and rural land
issues together in one code, it would be beneficial to have a section of the land
code devoted to rural land and a section to urban land.
It was felt that doing so would help to address issues applicable to rural land and
issues applicable to urban land; therefore, the code could be tailored to their
different requirements.
Having one land code that is supposed to be applicable to both rural and urban
land may put some communities at a disadvantage. For example, effective
mediation over land disputes may differ significantly in a rural and an urban
setting.
A provision should be included that allows for mediation as a mechanism
for resolving land-related disputes.
Following on from this, one aspect that participants considered to be missing
from the land code is a provision for settling land disputes using mediation
techniques at a local level. One of the most common methods of conflict
resolution in rural areas is done through local-level leaders such as village chiefs
or elders. If an amicable solution cannot be found, an official conflict resolution
procedure may be undertaken at a departmental level. If the matter is not settled
at this level, then the complainant may appeal to the higher courts. However, as
mentioned previously, these facilities are few and far between and rarely
accessible to communities at a local level.
Local-level mediation, done effectively, has the potential to mitigate the need for
higher level courts. Though the land code makes provision for mediation in the
expropriation and eviction processes, the code could go further and make a
provision for establishing mediation groups. These groups could work with local
leaders to undertake conflict prevention work, for example, by working with
groups or individuals going through expropriation and eviction processes, to
settle conflicts before they develop. In addition, they could act as a mediator in
cases of escalating conflict, or support the local leadership as it strives to do so.
Support for local mediation efforts for land disputes is found in Sections 9.11,
25.3 and 21.3 of the FAO Guidelines, the latter of which confirms ‘States should
strengthen and develop alternative forms of dispute resolution, especially at a
local level. Where customary or other established forms of dispute settlement
exist, they should provide for fair, reliable, accessible and non-discriminatory
ways or promptly resolving disputes.’
18
Potential loophole
Clarification is required for the conditions by which the Council of
Ministers can allocate land over 10 hectares.
One area identified as a potential loophole which could potentially have a
negative impact on communities is with the allocation of plots, especially in rural
areas. Article 44 lists the maximum number of plots that each level of authority
can allocate to a single stakeholder.
Article 44: Competent authorities for the provisional allocation of provisional or
permanent rural concessions and their revocation
Provisional rural concessions are allocated: by order of the local Prefect up to two (2)
hectares; by order of the Governor up to five (5) hectares; by order of the Ministry of Land
Affairs up to ten (10) hectares; by decree of the Council of Minsters over ten (10) hectares.
The definitive grant or revocation shall be established by the authorities above within the
scope of their competencies and the conditions set out in the present law.
However, it is not clear what the conditions are for their allocation. There is
concern that a lack of clarification could lead to abuse or misinterpretation of the
law by the authorities. It is especially important that clarification be given for the
conditions by which the Council of Ministers can allocate land over 10 hectares.
This is key to supporting the transparency of the way land is allocated.
Sections 12.5 and 12.6 of the FAO Guidelines affirm the importance of
transparency, with section 12.5 stating that ‘States should with appropriate
consultation and participation, provide transparent rules on the scale, scope and
nature of allowable transactions in tenure rights and should define what
constitutes large-scale transactions in tenure rights’.
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Conclusion
This draft code has the potential to benefit the 80% of Chadians (USAID 2010)
who depend on land for their livelihood, though improvements and amendments
are required, as outlined above. The draft code goes some way towards aligning
itself with the principles of the FAO Guidelines, however alignment could be
strengthened in a number of areas, including eviction and expropriation
processes and local level mediation.
It is important that due care is taken for the law to be implemented effectively and
the following issues must be carefully considered.
Community participation is absolutely essential for the development and
implementation of this code, and further research should be undertaken to
help strengthen it.
It is unclear what level of community participation occurred in the formation of
this draft code, though stakeholder interviews suggest this was limited.
Therefore, it is essential that, given the large percentage of the population
dependent on land for their livelihood, further consultations are held at a
community level in order to strengthen the recommendations for this code.
It will be particularly important to consult with women’s groups, as, though the
draft code itself does not discriminate based on gender, there may be challenges
implementing this principle at a local level. Customary and traditional authorities
must also be included in all land-related discussions.
This study therefore recommends that further research be undertaken to enable
a wider participation of stakeholders, ensuring greater diversity of input into the
formation and implementation of this proposed new land code.
Communities must be made aware of their rights under the code – both
remaining and new. Local officials must be trained to help implement them.
It is important to recognise that the majority of the Chadian population (63%) are
illiterate (World Bank 2012). Therefore, while the FAO Guidelines are correct
when they state in section 6.4 that ‘Explanatory materials should be widely
publicized in applicable languages and inform users of their rights and
responsibilities’, for this law to be implemented effectively it is essential that
additional tools are used to ensure the population of Chad are made aware of
this new land code. It will take time for the population to adapt to the new code
and therefore will be necessary to allow time for awareness raising. This process
therefore could be started prior to its adoption.
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It will be of paramount importance that rural farmers are made aware of their
rights under the proposed new law – both rights that are remaining and new
rights. It is also important that local and regional government officials are trained
in how to implement this law and that effective structures are put in place to
support its implementation.
A rural land service should be established at the sub-prefecture level.
In order to address these challenges and aid the implementation of the land code
in rural areas, a rural land service should be established at the sub-prefecture
level with the purpose of specifically addressing the land needs of rural
communities.
This rural land service could have the following role:
 Establish land management committees, and train them to enforce the law.
 Train local officials and civil society groups, and sensitise communities to be
familiar with the law.
 Ensure the management and security of common land and natural resources
for common use, and land used for sacred sites and rituals for worship.
 Work in collaboration with the village land commissions to ensure the rural
land records are kept up to date at a local level.
This recommendation is supported in section 6.4 of the FAO Guidelines, which
states that services should be delivered to all, ‘including those in remote
locations’, and section 11.5, which requests that states ‘establish appropriate and
reliable recording systems, such as land registries’.
Sufficient funding must be in place for all areas required to implement this
code effectively.
Questions remain about whether sufficient funding has been allocated to the
implementation of the proposed new land law once it is passed. The international
community will have a significant role to play in supporting the government of
Chad in this process.
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Recommendations
Based on this research on the draft land code, the following recommendations
are presented:
1. For clarification:
 The term ‘customary rights’ must be clearly defined.
 The definition of ‘permanent and evident’ ground coverage must be clearly
defined.
 The term ‘public interest’ should be clearly defined.
 Clarification is required for the conditions by which the Council of Ministers
can allocate land over 10 hectares.
2. For amending:
 The process for obtaining land titles should be simplified and the costs
significantly reduced.
 The article forbidding any construction, planting or improvements on land
during the expropriation process will put the owner of the land at a
significant disadvantage and should be revised.
 Loss of future earnings should be taken into consideration as part of
compensation.
 A longer notice period (than one month) should be given once the
compensation ruling is finalised.
3. For further consideration:
 The articles outlining the consultation process (which occurs prior to any
compulsory purchases) should be further developed.
 The expropriation process must not be drawn out and costs of appeal
should be covered by the state.
 The state must ensure it has sufficient funds to effectively implement this
law (including the expropriation costs) effectively.
4. For provisions to be added:
 The code should contain articles specific to rural land and articles specific
to urban land.
 A provision should be included that supports mediation as a mechanism
for resolving land-related disputes.
5. For implementation:
 Community participation is absolutely essential for the development and
implementation of this code and further research should be undertaken to
help strengthen it.
 Communities must be made aware of their rights under the code – both
remaining and new. Local officials must be trained to help implement
them.
 A rural land service should be established at the sub-prefecture level.
 Sufficient funding must be in place for all areas required to implement this
code effectively.
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Bibliography
All websites accessed January 2015
EEMET (2014) ‘Rapport de Consultance sur le Project de Loi Fonciere et
Domaniale au TChad’ (unpublished)
Food and Agriculture of the United Nations (FAO Guidelines) ‘Voluntary
Guidelines on the Responsible Governance of Tenure of Land, Fisheries and
Forests in the Context of National Food Security’
www.fao.org/docrep/016/i2801e/i2801e.pdf
Gouvernement du Tchad (2013) ‘Projet de loi portant code foncier et domanial
du Tchad’ (unpublished)
La Loi n°23 du 22 juillet 1967 portant statut des biens domaniaux
La Loi n°24 du 22 juillet 1967 relative à la propriété foncière et aux droits
coutumiers
La Loi n°25 du 22 juillet 1967 portant limitation aux droits fonciers
Maps courtesy of Google Maps
United Nations Development Programme (UNDP) (2014) Human Development
Reports
http://hdr.undp.org/en/data
USAID (2010) USAID Country Profile, Property Rights and Resource
Governance: Chad
http://usaidlandtenure.net/sites/default/files/country-profiles/fullreports/USAID_Land_Tenure_Chad_Profile.pdf
World Bank (2012) Literacy rate, adult total (% of people ages 15 and above)
http://data.worldbank.org/indicator/SE.ADT.LITR.ZS
World Bank (2013) Country Data: Chad
http://data.worldbank.org/country/chad
World Health Organization (WHO) (2014) World Health Statistics 2014
http://apps.who.int/iris/bitstream/10665/112738/1/9789240692671_eng.pdf?ua=1
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